ANGLIN et al.
SMITH et al.
DILLARD, C. J., REESE AND BETHEL, JJ.
Anglin v. Smith, Case No. A16A1405 (October 12,
2016), this Court granted Mittie Anglin and her husband a new
trial in their medical malpractice action against Dr.
Stephanie Smith and Gwinnett Anesthesia Service, P.C. (GAS).
This Court determined that, regardless of whether the
plaintiffs' counsel had a duty to disclose a certain
affidavit to the defense as part of pre-trial discovery, when
the plaintiffs attempted to utilize the affidavit in the
course of trial, the trial court erred by excluding the
affidavit. Anglin, at 2.
this Court's denial of their motion for reconsideration,
Dr. Smith and GAS petitioned the Georgia Supreme Court for a
writ of certiorari. That petition was granted, and the
Supreme Court vacated this Court's judgment and remanded
the case to this Court for reconsideration in light of the
Supreme Court's decision in Resurgens, P.C. v.
Elliott, 301 Ga. 589 (800 S.E.2d 580)
Elliott, a malpractice action, the plaintiff
attempted to call a witness who had not been specifically
identified as a potential witness in the plaintiff's
discovery responses or in the pre-trial order.
Elliott, 301 Ga. at 589. The trial court later
excluded the witness from testifying. Id. This Court
ruled that the trial court's exclusion of the witness was
in error and granted the plaintiff a new trial. Id.
See also Elliott v. Resurgens, P.C., 336 Ga.App. 217
(782 S.E.2d 867) (2016). However, the Supreme Court reversed
this Court's decision granting the plaintiff a new trial,
finding that the trial court had not abused its discretion
under the discovery rules by excluding the witness.
Elliott, 301 Ga. at 597-99 (2) (b).
light of Elliott, we now turn to a reconsideration
of the issues originally raised on appeal by the appellants:
whether the plaintiffs had a pre-trial duty to disclose the
affidavit they attempted to use to question a witness in the
case and, if so, whether the trial court erred by barring the
plaintiffs from using the affidavit at trial to refresh the
witness's recollection. For the reasons set forth below,
we affirm the trial court's exclusion of the affidavit.
Relevant Factual Background.
in favor of the jury's verdict,  the evidence shows that in
2010 Anglin's orthopedist referred Anglin to
anesthesiologist Stephanie Smith for a series of lower back
injections to treat pain. Smith performed the second
injection on May 12, 2010, although she stopped the procedure
midway when Anglin complained of pain shooting down her leg.
Anglin left Smith's clinic following the procedure.
Anglin contends that after the second injection, she suffered
weakness and pain in her lower extremities, such that she was
unable to stand, as well as urinary incontinence.
precise time at which Smith learned of Anglin's problems
following the second injection was a key issue at the 2015
trial. Smith testified that she assessed Anglin after the
epidural procedure and noted no problems with walking. Other
staff at Smith's clinic also testified that Anglin would
not have been discharged had she been unable to walk. On May
14, two days after the procedure, Smith received a telephone
message that Anglin's legs were "hardly working at
all." Smith testified that when she returned the phone
call, Anglin said she was having spasms and needed more pain
medication but had no problems with her bowel or bladder
function and was able to walk. According to Smith, Anglin
declined to come see her in the office or go to the emergency
room. Smith prescribed medication and said she told Anglin to
go to the emergency room if she did not improve and could not
reach Smith or the doctor on call. Smith said Anglin did not
call her to report problems again.
trial, Anglin told a different version of this conversation,
testifying that she told Smith that her legs were
"jerky" and "wouldn't work" but Smith
did not ask her to come into the office or direct her to the
emergency room; she said she couldn't remember if Smith
asked her about urinary issues. The plaintiffs' expert
testified that, assuming Anglin had told Smith in that
conversation that she could not walk due to leg weakness, was
in pain, and was experiencing urinary incontinence, Smith
should have directed Anglin to come to her office or go to
the emergency room for an MRI. Smith herself testified that
she would have sent Anglin directly to the ER if Anglin said
she could not stand up and walk.
18, Anglin visited another doctor who spoke with an
orthopedic surgeon and advised her to go straight to an
emergency room to meet with him. Anglin received surgery that
same day but continued to experience difficulties through the
time of trial. Claiming Smith violated the standard of care
by not properly assessing her after the second injection or
investigating further after their post-injection phone
conversation, Anglin sued Smith and her employer, GAS.
sole focus of this appeal is the trial testimony of Robert
Gadlage, a physician who employed Anglin at the time of the
injections. In particular, the appeal concerns the trial
judge's limitation of Gadlage's testimony based on
the plaintiffs' responses to discovery. Before trial, the
defendants served the plaintiffs with several
interrogatories, including a general request for names and
addresses of all witnesses. Gadlage was identified in
response to that interrogatory. The defendants also posed a
rather inartfully worded interrogatory:
Please indicate whether any doctor, nurse or other
individual, with or without medical training, has ever
expressed to you in your presence, or to your knowledge has
ever expressed to or in the presence of some other person,
any opinion that these Defendants were negligent, acted
inappropriately or otherwise caused or was at fault, or that
you contend could be construed in any way to support the
allegations of your Complaint. Please indicate in reasonable
detail when and where such statement was made, what was said
and who was present.
plaintiffs responded to this by referring to their response
to the more general interrogatory seeking the identity of all
witnesses. A document request included in the same set of
defense discovery requests sought production of any documents
"referred to in your answers to interrogatories."
The plaintiffs responded that they had "none at this